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MARK HERRING: THE FOX IN VIRGINIA’S LEGAL HEN HOUSE

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Whether by ignorance or design, Virginia Attorney General Mark Herring’s actions in Bostic v. Rainey (challenging the state’s constitutional definition of marriage) represent an all-out offensive against this country’s and the state of Virginia’s foundational principles.  As John Adams famously said, we have “a government of laws, and not of men.”  That is a freedom-preserving principle.

AG Herring turns that principle on its head by making our laws contingent upon man’s flimsy whims — more specifically, the whims of the powerful elite.

Back in 2006, when Virginians debated and passed a constitutional marriage amendment, Herring actually supported the effort.  He voted for it.  And he was not alone; the amendment passed with 57% of the vote.  More people voted for this amendment than would eventually vote for Mr. Herring.

To be clear, Virginia’s constitution defines marriage as the union between one man and one woman.  It is not, as the left-wing media likes to put it, a ban on “same-sex marriage” any more than it is “a ban on polygamy” or any number of other unions.  It is the result of the rational, reasonable conclusion that children do best with both their mom and their dad staying married and loving each other and their children unconditionally.

This is important because it shows that AG Herring’s actions today are not based on a fight against “bigotry” or “discrimination.”  There was none.  Or was he a bigot in 2006?

The facts haven’t changed.  Moms matter.  Dads matter.  The scientific data is overwhelming.  According to the U.S. Census Bureau, children growing up without fathers are almost four times more likely to be poor.  Fatherlessness leaves children at higher risks of incarceration, teen pregnancy, dropping out of school, drug abuse, and many more social ills.

The point is not to defend Virginia’s Constitutional Marriage Amendment, but to show that there are compelling reasons behind its enactment, because the total absence of reason is the only thing that could possibly justify the extreme actions of AG Herring today.

Shortly after his vote in 2006, Herring changed his mind on the issue and decided to support “same-sex marriage.”  This fact is important, because it means he knew going into the campaign for attorney general that he disagreed with the amendment, though he declined to say what he would do with it once in office.  Herring won a very close election (won by only 165 votes to be exact!) and on January 11, 2014, he raised his right hand, placed his left hand on the Bible, and took this oath: “I, Mark R. Herring, do solemnly swear that I will uphold and defend the Constitution of the United States and the Constitution of Virginia. …”

He did so, knowing he would not uphold part of it — and not only that he would not uphold it, but that he was actually going to work against it.  Just 12 days after taking that oath, he entered his “Notice of Change in Legal Position” in Bostic to fight the constitution he swore to uphold.

Again, let me be clear, unlike other AGs, who have elected not to defend a law they believe to be unconstitutional, Herring actually took the unprecedented step of switching sides to work against the people who pay his salary.

The weakness of his reasoning is exposed in his brief, where his many examples fail to point to a single case where any other AG has switched sides to work against the state he represents.  Not to mention the fact that he is not fighting a simple statute, as his examples point to, but the very constitution he swore to uphold.

He cites U.S. Attorney General Holder’s efforts against the Defense of Marriage Act, which was not a constitutional provision.  He also cites former Virginia AG Ken Cuccinelli’s decision not to defend a statute, while failing to recognize that Cuccinelli was actually defending the state constitution, therefore honoring the oath he took.  And Cuccinelli followed the law by appointing a special counsel to handle the matter.

Herring has done the complete and total opposite.  He is working against the Virginia constitution to challenge a constitutional provision that is entirely reasonable, and he is doing it without appointing special counsel to defend it.

His pathetic answer to the last charge is that the other side is already well represented.  Indeed, they are.  But it is his duty to defend the state constitution.

His overall reasoning seems to be that he wants to be “on the right side of history” when it comes to marriage.  Well, whatever the case may be on that point (about which I believe he is wrong), he is certainly not going to be on the right side of legal history.  Both conservative and liberal legal scholars can see this is not the proper way to handle the situation.  Ed Whelan, President of the Ethics and Public Policy Center, recently quoted liberal law professor Stephen Gillers, saying:

The attorney general’s obligations as a lawyer therefore require him to vigorously defend any of those laws against challenge under federal law so long as there are reasonable (i.e., non-frivolous) grounds for doing so.

AG Herring’s actions are irresponsible and offend the very essence of our form of government.  John Adams said it this way, “The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty.”  Herring is at least attempting to gain such power.  Virginians must not allow this.

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